Selected decisions of the Native Appeal Court : Cape and Orange Free State, 1931

(1)

SELECTED DECISIONS'

of the

NATIVE APPEAL COURTS?

CAPE and O.F.S.

1931

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SUBJECT

^I ^U ^D E X.

ACT 3S of 1927 ADULTERY

AP'FILIATIOU

/JvIANIKV/E TRIBE

HiAL ASSAULT ATTACmffiUT CHILDREN

CONTRACTS

- Sec 10 (3): Jurisdiction of Native/Commissloners ^' Courts^.

- Kissing a. "catch” and corroboration of previous acts of mis- conduc t

.

- mere oath of mother not sufficient

to fix paternity.

- succession: Rondo custom,

- No appeal on ruling given on a point of evidence

- grounds of, objection in limine,

- inade'.,uacy of damages for,

- without process of Court,

- of customary unions;allcv/ance made for on dissolution of union

“ Contra Bonos Mores : married person promising to marry another on

dissolution of subsisting marriage,

- performance of: land-seller duties PAGE

15

6 39 29 34 41 48

IS

NO 10

5 23 18 21 24 28,

of, 21 13

COSTS ^- awarding of on successfully

pleaded issues, 24 & 31;16 & ^:

- damages I'endered in cattle where

ca.ttle claimed,estopped from

demanding money 36 23

COURTS ^- see Native Commr's Courts 16 10 DAI^PiGES ^- (Ciskei) payable under Fing'o

custom for seduction not follov/ed

by pregnancy 1 1

- (Ciskei⁾ ^:seduc ticn followed by pregnancy

.

51 29

- inadequacy of. 41 24

- remoteness of, 48 28

- seduction: tender :costs

,

36 22

DEFAyfiTION ^- Native custom ^- no action

for under -, except for accusations of sorcery or v/itchcraft,otherwise

European law applies. ¹⁹ 12

DIVORCE ^- reclaiming of dowry; husband’s claim

fails when he is the guilty party, 45 26 DOWRY -net recoverable for Contra bonos mores

contracts, ^'13 9

- Hia.ngwini

,number of. 43 25

- cannot be claimed by husband

when marriage was dissolved because

of his misconduct, 45 26

ESTOPPEL ^- damages claimed and tendered in

cattle^,cannot be demanded in money. 36 22

EVIDENCE ^- bjirderi ^f proof, 17 11

- "right to begin” 29 18

- credibility of, cognisance taken

of document not filed of record. 33 20

^INGO CUSTOM :CISKET)

- damages payable under for seduction

not follov/ed by pregnancy. 1 1

19.

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SUBJECT DUX,

'

H

' HEIR cusLoriary union; right of apporticnineuL of cons recognition of,

HLANGV;iNI DOWRY

INTERDICTS ^- ex parte orders INTERLOCUTORY

PROCEEDINGS

INTERFLE.ADER posvsession of ^a.

oresumption of

ISIHEWUI.A

-costs in, unpaid

” Sale ^- delivery:

movable raises a ov/nership

- Claimant must nr

for xlxacutlMi Oreditor to ovmership is not in claimant -see Native customs.

;ve title ;sufficien- prove that

?

'L » LAND

'M‘ MARRIAGE

N’ NATIVE CUSTOMS

' transfer of arrable allotments, duties of seller,

Ciiristian or civil rights: divorce ground of husband's misconduct:

dowry cannot be cla.imed,

• customary unions: dissolution of, (Ciskei) "Isihevula”

" seduction followed by

pregnancy.damages for

,

defam.ation, when ar tiona.ble under, Kl angwini dowr y^,number of

,

illness and death of wife:liability of husband for expenses incurred

- kraalhead ,responsibility of

" akin to precarium, succassion: nomination

nqcma iUrdc

'jvife by paramount chief alone

.NATIVE COiL.EI^'3

COURTS

.

N\'c;.Or/Lk

O' OiVNSRSHIP

- succession ;anportionment of sons.

-di 3crctionary pov/ers of

-Jurisdict

i

0n of,

“_i'ranskeian Terrⁱtories :jurⁱsdicticn

- Native custom; akin to precarium,

- Interpleader: claimant must prove ^‘

- Execuoion Creditor need only rabut

- claimant's claim to ovnership ^~

'AGS

.

NO.

‘T2 “8“

47 27

43 26

27 17

15 10

2 2

10 7

21 13

on

45 26

5 4

1 ¹

51 29

19 12

43 25

4 3

19 12

22 14

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39 23

45 27

24 16

15 10

27 ^-i-^/

22 14

Itle

10 7

P' PCNDO POUND

CUSTOM ^~ succession _; great wife REGULATIONS- wrongful J unlwaful PRACTICE

jl-R0CEDURjii

39 impounding, 17 joinder; kraalhead wmth tort-foasor, ^IS attachment without process of Court 48 burden of proof or "right to begin"^.17/29

:

cognisance taken of document not filed

'R ^'

\^I — RESIDENC-

of rec.-rd Court caniK same issue, what constitutes

;

t adjudicate twice over on empbrary

SEDUCTION

SPOLIATION SUCCESSION

’tiV_FE

WIDOW

33 24 15 51

- and pregnancy,damages for

-not foll'swed by pregnancy,damages for

(Fingo custom,Ci ske i) 1

- mere oath of woman net sufficient ⁶

- Nqomaed stock, 22

-Pondo custom,Paramount Chief alone can

nominate ;great v/ifa, 39

-apporticnjTient, of sons, 47

-illness a. death of; liability of husband

for e:qDenses incurred. 4

-dissolution of rnarrisge vdien husband is

guilty party,not tantamount to rejection 45 -nomination of gneo.t wife:P'‘ndo custom 39 Native customary union rights of

, 12

property acquired by,ovmership of, 23/33

23 I

11 12 28 ^’ 11/18.

20 16 lO 29 1 5 14 23 27

26 23 8 15/20.

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Digitized by the Internet Archive

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https://archive.org/details/nativeappealcour03tran

(7)

SELECTED DECISIONS

OF THE

N

ATIVE AP PEAL

^C

OURT

^:

(CAPE AND ORANGE FREE STATE).

-oOo-

VOLITMS THREE.

CASE NO. 1.

THOMAS KWATSKA versus DETK^VELL & BEN SIHLUKU.

KING V/ILLIAM'S TOV^: January, 21, 1931.

Before J,N. YOUNG, President and J.W.ORD & M.^'V.HARTLEY,

Members of the Native Appeal Court, (CAPE & ^O.F.S, DIVISION).

-oOo-

iTATIVE CUSTOM: 'ISIIIEmA' ^- SEDUCTION NOT FOLLOWED BY

?Rii.GNANCY ^- FINE OR

DAMGES

PAYABLE UNDER FINGO CUSTOM (IN CISKEI),

(Appeal from the Native Commissioner’s Court: ALICE, V.E.).

-oOo-

The Plaintiff, now Appellant, sued the Defendant for 5 head of cattle or their value £25 as damages for the seduction of his daughter. The Defendant admitted the seduction and defloration of the Plaintiff’s daughter.

He denied liability for 5 head of cattle or £25, and said that a tender of 2 goats or 1 beast had been made before the issue of summons & that, as pregnancy did not follow as a result of the seduction; and as there were no aggrav-

:ating circumstances, the tender was sufficient & should have been accepted. The Plaintiff admitted the tender but said that it was made after the issue of the sumrnons.

After hearing expert evidence on the custom as it obtains amongst the Fingoes residing in the District of Victoria East, the Commissioner entered judg-

:ment for the Plaintiff for 1 beast or its value £5 and costs of suit to date of tender.

Against this judgment the Plaintiff has appea3.ed on the grounds that it is contrary to Native Custom & that the damages awarded are inadequate.

The question as to the number of cattler paid as a fine for seduction unaccompanied by pregnancy is

put to the Native Assessors. Hiey unanimously state:

'''hfiien a girl has been seduced by a man with whom she

has slept, it would be called ’Ukuhev.Tala’ . The women of the kraal would take the girl to the kraal of the young man & would there pick out the best beast, take it away & slaughter it. That would dispose of the

'I.’kuhewjla ^’ . No fui’ther boast would be payable. The v;omen of the kraal to which the girl belonged being responsible for the girl’s body would have discharg-

:ed their obligations. The father or guardian takes action only when seduction is follo'wed by pregnancy.

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''Vith regard to the age of the girl'

Wh'

parents would know she was 'Metshaing' with the"man <f:

her age makes no difference."

This expression of opinion is a.ccepted by this Court as ^a. correct statement of custom as observed by the Fingoes in the Ciskei and, there being no circumstances of aggrava.tion which would warrant higher damages, the Apneal must fa.il and is accordingly dismissed with costs.

~ 0^-- Fp^.2

CFAFCE FGULU V3. JAilESOF ilAFDLANA i-.IKGhILLIAM3T0"hC: 21st JAF. 1921.

Before Young,President and J.h.Urd & M.W.Hartley

,

iVlembers of the Native Appeal Court (Gape and O.F.S.;

INTERPLEADER: SALE: DELIVERY: JUDGi^lENT DEBTOR : POSSESSION OF A ..lOVABLE RAISES A PxRESLTlPTION OF ONNEJRSHIP: PERSON CuAI.ENG OWERSHI? ON GROUIG3 T^IAT ^^E ^lAS PURCM3ED

rIOVABi_,E FROM PERSON WHOM HE ^^AS ALLOR-ED TO REIIAIN IN POSSESSION OF IT MUST REBUT PRSSURiPTION OF OUNERS'^IP JLEAR AND SATISFACTORY SVIDE^'CE:

(.Anneal from Native Commissioner's Court: Keiska.ma.hoek) The Respondent obtained ^a judgment in the Court of the Native Commissioner at Keiskama.hoek against .Sitwayi Ngculu _{for £15,} a.nd costs of suit, and

a warrant ^of execution was issued to satisfy this

judgment. Four head of cattle, ten sheep and four lambs V7ere attached at the kraal of the judgment debtor. Three head of cattle were attached at the kra.al of Solomon Lupuzi and two head of cattle at the kra.al of Sima.nga Nkenca. Interpleader proceedings followed and the three head of cattle atta.ched at the kraal of Solomon Lupuzi and one of those atta.ched at the kraal of the judgment debtor v/ere cla.imed by the Apcellant. These were declared executable with costs and an apneal aga.inst this judgment

is brought by the Claimant on the grounds that the judgment is against the v;eight of the evidence and that the presiding

.ludicia.l officer erred in allowing hearsay evidence to be adduced by the execution creditor.

It apoears from the evidence that the Messenger of the Court made tv/o journeys to the kraal of the judgment debtor, one on the .list July 1920, and the other two days later. On the occasion of the Messenger’s first visit all the stock a.ttached were in the possession of the judgment debtor but on his second visit three head of cattle had been removed to Solomon Lupuzi 's kra.al, and two to Simanga Nkenca ^'s

.

The A.ppella.nt's case is that he purcha.sed the cattle atta.ched. a.t Solomon Lupuzi 's kraal from the judgment debtor and that the red a.nd white ox atta.ched at the judgment debtor's kra.al v/a.s allotted to him by his father out of the dowry of his sister under the custom of ‘'ukufakwe".

Now for the purposes of this case, the cattle must be rega.rded a.s having been attached in the possession of the judgnent debtor and. the onus of proof_, therefore

, lies on the Claimant.

The

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Ths^ Assistant TTa'Live C Ta'jrnlssioner found that the claimant had faileo to dic-chargc the onus which nested upon him and came to tne conclusion that the claim v/as a ho.ris one and was set up with a viev^' to defcj ting the claim of the Execution

Creditor.' This Court ^''.b not prepared' to disturb this ^'•

finding.,

In the case of ru.>licansky Brothers versus Hanau tP5 S.C. 672),; Hop.Le;y J.,sa:..dn-

'The.re is a presumption of lav/, no doubt, and a presumption, ^I cnink of common-sense_, tham, when goods are

"found in the possess: on of anyone.; they belong to that '‘person: and^ wheui shere is a debtor in the ostensible

’^possession of luriiicuce or anything else, the things

'

"thai: are fount;, in his, posses.sion end taken possession

"of by the Sheriff or llcssenger of Lhe Court, who is

"'charged ’'Uth tne execution of a judgment.,^ would

"prima. facie be deemed to be the goods of such debtor, but

" it appears to me cnat the presumption, although I think

’it is a perfectly proner one, is one vfnich should be

"ccnsidered in riew of tl.o circumstances of e.ach parti-

”cular case, end which, can be swept away and upce-c by

e'v'idenoe

And in ^he case of Z.:^ndber,g versus Van Sy3.,. (1710.

A«D.302), De ’'''illiers C.Jo , saidr-

''Possess'i'on of ^o movable Arises a presumption of ovmer-

p.nd, th0i'<^fore, ,a claiiaa:''".t in an interpleader suit

"claimiry^ .the oemership on the g'-:'ound that he iias bought

"such movabja from a pei-::>Gu ahom he l^.as aliov/ed to retain

"posse.ssion of it, must I'ebut that presumption by clear

’

'and catisfac ory ^.ev^j.denc

In i,hc nrcsei.t ca.ce the er.'idence of the sale and the allotment is far from satisf?.crony» Too oxpi.anation why the animals v-^era allO'.v.^,i to i-.mnain in the possession of the seller (the Jadgment D'btor; i-s net at 'all con:-‘.ncing,

lurtneimore_, 1..Ls staiement as to the source of the £15 which he alleges ha paid to the judgment debtor’’ as the purchase price cf the three head of cattle does not bear the stamp of truth.

If as he says his superior ofrciccr Jeept all his savings and also his savings drank oogac, it is diifficult to i:nderstand v/hy he kept so larg^- a sumi as £15 in his hut which v/ould be nearly 4 month's wages>

Even if the evidence objected to is inadmissible, ^tine Acting native Comn:issioner was not influOxicee. by is and the AppelLant- has'pet b-^en p;.-ejud3 cec. b^/ its admission.

The apne.i.L is dismm'.ssad with costs

»

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MTOn

^{WILT.LVi^S} ^VS. kATHAniEI JTlOhE.

KIIiGVILLT :.MSTO’dih Slot JAN. 1931,

Before J.M. Young, rrr^.idont, .and JoVNOrd d MYr/fHartley,

Memibers of the Natr've ropea], Ocu:w.(Cf.re and Division), NATIVE,

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!TATIVE

1ARTV.CR

RADICAL

GUSTOA: ILLIULoS ADD

T lABILITY OF hUSEA FEES A:Cj FURCRAI. EXL,

DELTH CF LD OR rai:

'IFF OR FEiAIE PARTRi:R FOR

^Appeal from the Native Commissioner^‘

3

Court: Queenstown).

In this case the Plaintiff sued the Defendant for the sum of £14.15.0, disbursed by him in connection^,with the last illness and burial of the Defendant’s v/ife.

The admitted facts are that shortly after her marriage, the Defendant's wife became ill, that her father sent her to the Pla.intiff; the Defendant’s brother-in-lav/, for care and treatment, ths.t the Plaintiff caused her to be medica.lly treated, that she died in the Grey Hospital at Kingv/illifims tov/n, and that the Plaintiff expended a sum of £10.16.0, in connection wish her treatment and funeral expenses.

It is contended on behalf of the A.i'pellant,

Defendant in the Native Commissioner^'s Court, that the judgment of the trial Coui’X, awardinf; the Plain1;ff the sum of £10.16.0, and costs is wron.g and contpari'" to law and Nartive Custom in that the Defendant did not authorise the Plaintiff to incur any

expenditure and that the Defendant's wife's father, having taken her away under Native Cu3'' om, is liable.

In the case of Ntsentselele vs, Rangana.

(3,H,a,C. 66.) the Native Assessors stated:- ’'bnder Native Custom a married woman becoming ill should be doctored oy her husband, even if only recenuly marvied. There are cases when she is

doctored by her father but this ^is done by consent and out of the father's generosm'd'.' . We know of no case where sue]: treatment .s

supplied by her fachei' as an cbligation’A

From _the above statement of Custom ip, seems clear that a husband is liab^'e for the medical ti’eatisent and funeral expenses in connection with the interment of his v/ife.

In •^he present case, although the Defendant did not request the Plaintiff to renc’e'r* the services which he did he nevei'theless was aware of what w/as happening and acquiesced

in the action taken., ^. lihere is a well recognised equitable principle of la;r that no one sha.ll become the richer to the loss or injury of arothar« This principle seems to be eminently apgslicable to the present case where a third party has discharged the duty which the husband owed to the wife cind tnit Court is of opinion the husband should make good to the Plaintiff what he has expended and

thus relieved him (ire husband) from paying.

The Appeal is dismissed vAth costs.

.. _ c ^-

DO

T.wl^ jA^J-’I GAOA VS. JOHN DVABA

.

KrLG'ilLLl'ARSTOblh 21st JAN: 193^j.-

Before J.R, Yo\mg, President, and J.V.Crd & M.’J.Hartley, Members of the Native Appeal Court( Cage and ^O.P'.S. Division),

DISSOiljTJCN. ^. .. ./

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Page 5

DISSOLUTION OF CUSTClJUr/ UInIION: USUAL PRACTICE IS TO CIAIte RSSTORATIOU OF '.'/IFE OR RETURI-' OF DO'VRY. ALIOV/ANCS OF ONE HE^J3 OF CAI'TLE LADE FOR EACH CHILD BORlv OF CUSTOMARY

UKION ON DISSOLUTION OF SUCH UNION.

(Appeal from the Native Commissioner's Court: Stutterheim)

.

The Plaintiff in this case sued the Defendant for the return of five head of cattle and one mare or their value the sum of £35, being the dowry paid by him ^to Defendant

in respect of a customary union entered into by him with the Defendant's daughter. In his panticulars of claim he alleged that during the month of August, 1930 his wife or partner deserted him and, notwithstanding repeated requests, she neglects and refuses to return to him.

Before pleading the Defendant excepted to the summons on the ground that **Act 38 of 1927 in respect of

Lobolo claims is not retrospective and therefore Plaintiff caraiot claim the return of the lobola cattle". This exception wa.s

over-ruled.

The Defendant, in his plea or answer to the claim, admitted the union and the receipt of the dowry. He denied

that his daughter had deserted the Plaintiff and said that Plaintiff, after consultation with a witch doctor, named or

indicated her as a witch and imputed to her the use of non- natural means in causing the death of the Plaintiff's child, and ordered her to return to her parents

Evidence at considerable length was led and the Assistant Native Commissioner found, on this evidence, that the Defendant had failed to establish his plea and entered judgment for I’laintiff in teims of his prayer with costs of suit.

The Defendant has appealed on the following grounds:- "(I), ^‘hat the Assistant Native Commissioner has

erred in disallowing the exception to the effect that Plaintiff cannot claim the return of the lobolo cattle on the ground that Act 38 of 1927, in

respect of lo'bQlo claims, is not retrospective and that his decision in so doing is contrary to Law.

(2) That the decision of the Acting Native ComrniBsioner is against the weight of evidence.

(3) Should the Court hold that the judgment of the Assistant Native Commissioner is otherwise in

accordance with law and custom, then the Defendant appeals against the judgment to the extent that the Assistant Native Comirdssioner has omitted to allow

the deduction of one beast from dov/ry paid in respect of the one child admitted^lv horn of the customary union, such beasT'"b'eing a recognised deduction under Native Law and Custom.

"

Dealing with the first of these grounds this Court is of opinion that the Assistant Native Coirmiissioner correctly overiniled the exception. As stated in the case of Atoroka vs, Moroka heard at Thaba'Nchu in December 1929.

"Chapter. . . ./

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Page .<5

''Chapter IV. of the Native Administration Act, which embraces sections 9 to 21 inclusive, has been of force and effect since the 1st September It;27 and, on that date it gave the protection of law to rights then existing and based on Native Custom, _It also made cognizable by Courts of lav/

obligations corresponding to such rights, subject to certain defined limitations. In other words the authorizations,

comuTiands and prohibitions of Native Law theretofore ineffect- ive came into effective existence simultaneously '.'ith the Act

In this case the customary union v/hich was entered into in 1926, subsisted at the date of the taking effect of the /^ct and on that date the relations which existed betv/een the parties were ratified by the Act.

The second ground of appeal attacks the

judgm.ent on the facts. The onus of proof vms on the Defendant, The Assistant Native Commissioner has found that he has not discharged that onus. In his reasons for judgment he has dealt very fully and very carefully with the facts and the Court

considers that there is ample evidence or the record to justify his finding which it is not prepared ^t" disturb

The third ground of appeal falls away the Respondent having abandoned portion of the judgment to the extent of one beast or its value £5,

I

It is a well established principle of Native Law and Custom that one dov/ry beast is deducted for each child born of _a customar;''' union and the Respondent rightly abandoned the judgroent to that extent.

In all cases of this nature it is customary to sue for the restoration of the vdfe failing v;hich the return of the do’ory cattle. In the present case there is no prayer ⁱⁿ the summons for the restoration of the v/ife and as it appears from the evidence that the husband is anxious that his v/ife should return to him this Court considers that the judgment of the trial Court should have been one for the return of his wife vnthin a specified time failing v/hich the reti'rn of the dov/ry cattle

The appeal will be dismissed w’ith costs but the judgment of the Court below will be altered to “Judgment for Plaintiff fr^r the restoration of his wife v/ithin one month failing v/hich the return of five head of cattle or their value £25 and costs ^f suit".

CC

CR IS d LORRIS NKQICtGO _Vo, JAJ-.S KL'gJIL' lALSTO^^:: 17th OCT. 1:3C,

Before j ,L.Young ^,President_,and H^.C,Drew I C,V/.Crav/ford

,

iwembers of the Native Appeal CourtlCa.pe &. O.F.S.Division)

i:OT PROVABLE BY THE LEHE OATH OF THi ’7GLAir

.

- HOT PROVABLE BY THE MERE OATH OF THE MOTHER ONLY, AFFILIATION:

;Appeal from the Native Commiissioner^’ s Court^:Kingv/il] iamstov.n)

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Tr this case the Defendants.^ Stokfel Morris and Morris Nkolongo.^ v^ere suiranoned to ansv^er James Gcaza in an action in which the ilaintiff claimed five head of cattle _{or f 25}

^

their value as damiages sustained by him ^b}.'- reason of the first named Defendant having seduced and rendered pregnant his

daughter Dombo, The first namied Defendant is the son of the second named Defendant and resides at his kraalo The second

namied Defendant is sued in his capacity as guarciian of the first named Defendant and as such, liable for the latter's torts= In

the plea the Defendants denied that the Plaintiff's daughter had been seduced by the first named Defendant and that he v^as

responsible f:r her pregnant condition-

After the evidence of the Plaintiff^ his daughter and the messenger who v/as sent by the Plaintiff to report the matter to tlie Defendants had been heard and the Plaintiff had closed his case, the Defendants' Attorney applied for an absolution order on the ground that there was no corroboration of the woman's evidence„ This anplication was refused

b’-' the /A.ditional Dative Commissioner The Defendant's Attorney- then intimirted that he was not nrersred to lead any evidence

a''"d closed his casso Judgment was thereupon entered for the

Plaintiff in terms of his prayer with costs

»

The only question for this Court to determine

IS v;hether the unsupported and unrebutted testimony of the woman is sufficient to establish the Plaintiff's case and to

fix the paternity of the child on the Defendant,

It has been laid ^dovvni in a long succession of cases that the rule of lav/ in cases of seduction is that more than the mere statem.ent of the parties concerned is required and that there must be some evidence aliunde in order to enable the woman's oath t'"^ be preferred to the iman's; there must be some evidence apart from the v/omjan's own statement and bearing on the m.atter of her seduction which leads one to believe her rather than the ma.n. In other v/ords, it is incumbent upon the Plaintiff to bring forv/ard such corroborative evidence as to justify a. Court in comiing to the conclusion that notwithstanding the Defer/, ant's denial, there had been seduction. There must be some reasonable corroboration of the womian's statement.

The principle v/hich applies in cases of this sort has been very clearly stated in the case of Le Koux vs, Deethling /:,S,C.247), There the late Chief Justice, Lord de Villiers, said:-

"I think it miay be laid dovm as a general rule that the Plaintiff who seeks to fix the paternity of an ille- gitimiate child on a man must clearly prove it, and must be corroborated by some independent testimony, and in case of^{^}doubt judgment must be given in favour of the Defendant.

This, I think, may be stated to be the general effect of the authorities a.nd of our practice",

Applying these principles to the present case, this Court is of opinion that the appeal miust succeed and the judgment of the Additional Native Comimissioner is accordingly altered^to one of absolution from the instance with costs.

Costs of appeal to be borne by the Hespondent.

0000